A trademark must be capable of
identifying the source of a particular good. Thus, ite must be be
"distinctive." In determining whether a mark is distinctive, the courts
group marks into four categories, based on the relationship between the
mark and the underlying product: (1) arbitrary or fanciful, (2)
suggestive, (3) descriptive, or (4) generic. Because the marks in each
of these categories vary with respect to their distinctiveness, the
requirements for, and degree of, legal protection afforded a particular
trademark will depend upon which category it falls within, with
arbitrary of fanciful given the greatest protection, and generic given
no protection at all.

Trademark Law

Trademarks are governed by both
state and federal law. Trademarks arose originally from common law.
Since the late1800s, federal trademark law originated, taking over much
of the ground initially covered by state common law. The main federal
statute is the Lanham Act, which was enacted in 1946 and most recently
amended in 1996. Today, federal law provides the main and the most
extensive source of trademark protection,

Infringement

The use of another's mark in
connection with the sale of good or services infringes another's rights
if it is likely to cause consumer confusion as to the source or origin
of those goods or services. In deciding whether consumers are likely to
be confused, the courts will typically look to a number of factors,
including: (1) the strength of the mark; (2) the proximity of the goods;
(3) the similarity of the marks; (4) evidence of actual confusion; (5)
the similarity of marketing channels used; (6) the degree of caution
exercised by the typical purchaser; (7) the defendant's intent.

Damages

A successful trademark owner is
routinely awarded injunctive relief against and infringer further
infringing or diluting use of the trademark. Monetary relief may also be
available, including: (1) defendant's profits, (2) damages sustained by
the plaintiff, and (3) the costs of the action. Damages may be trebled
upon showing of bad faith.